State high court eyes changes to habitual offender law

The bicycle thief is locked up for life. No chance for parole.

Jerald Sanders' 1994 burglary is notorious among lawyers trying to reform Alabama's habitual offender law.

Sanders cut open a porch screen, grabbed a $60 bike and was convicted of first-degree burglary because the homeowner was inside. Added to five prior convictions for third-degree burglary and receiving stolen property, the case sent a nonviolent felon to prison forever. Sanders is 49.

"The State of Alabama can't afford to spend thousands of dollars incarcerating nonviolent offenders like that," said Bryan Stevenson, an attorney representing Sanders. "It's bad policy. It's inappropriate treatment of these people."

As the Legislature again grapples with prison crowding, it's considering several changes to the habitual offender law. Currently, 8,000 prisoners are serving lengthened sentences under the law, including about 300 nonviolent felons, like Sanders, serving life without parole.

Prisoner filed case:

Three years ago, lawmakers passed a bill that would have made the same reforms currently being debated in Montgomery. A case in the Alabama Supreme Court seeks to allow those changes to move forward.

Prisoner Junior Mack Kirby filed the case. Kirby, 61, has been locked up since 1990 for drug trafficking. He also has a 1977 arson conviction.

Stevenson, director of the Equal Justice Initiative, a Montgomery-based nonprofit law firm, represents Kirby.

Depending on the court's decision, hundreds of offenders, such as Kirby and Sanders could petition the courts to reduce their life without parole sentences to life.

"We have been contacted by several other prisoners, and what we've said is we need to litigate this issue before the Supreme Court," Stevenson said. "At this point we're telling people we need to wait on the Kirby decision."

His case involves an amendment to the habitual offender law that passed in 2001.

Since then, courts and state agencies have been hung up trying to determine how to apply the amendment. There are disagreements over who is nonviolent, and disagreements over who determines who is nonviolent. Former Attorney General Bill Pryor has said the whole thing is unconstitutional.

A brief history of relevant legislative activity:

In 2000, an amendment passed allowing judges to re-sentence nonviolent habitual criminals to life for a serious (Class A) felony if their prior convictions were lesser felonies. Previously, life without parole was mandated. Repeat offenders convicted of a less serious (Class B) felony could be re-sentenced to 20 years. Previously, a life sentence was mandated.

Because the amendment only applied to future cases, it did not help hundreds stuck in prison under the old law. So the Legislature in 2001 made it retroactive. The Department of Corrections and the Board of Pardons and Parole were to evaluate offenders to determine who fit the bill.

Executive order:

The ensuing problems center on an executive order that Gov. Don Siegelman attached to the bill. He ordered corrections officials to work out an evaluation process, and submit it to the attorney general and the Alabama Sentencing Commission. What would be considered nonviolent? Would prior violence count? What about violent behavior while incarcerated?

"The AG, then Bill Pryor, determined the statute making it retroactive was unconstitutional, and he sent it back to DOC saying it couldn't be implemented because it was unconstitutional," said Michael Billingsley, deputy solicitor general, representing the state in the Kirby case.

That's because, by asking for standards and guidelines, the Legislature was unconstitutionally delegating power to the executive branch, violating the Alabama Constitution's separation of powers provision, Billingsley said. "The problem is the Legislature should have given them (DOC and Pardons and Paroles) more guidance to do this," he said.

Meanwhile, Kirby goes to Jackson County Circuit Court, where he was originally convicted, and asks for a reduced sentence under the 2001 law. The court threw out his case in March 2003, agreeing with the attorney general that the law was unconstitutional.

Jurisdiction question:

Pending before the Supreme Court is whether the Jackson County court had jurisdiction to rule on Kirby's request for a lesser sentence. If so, the 2001 law is still alive. If not, the Supreme Court will address the constitutionality question, Billingsley said.

Kirby argues that the sentencing judge is the appropriate person to resentence a prisoner under the new law. And no executive order was necessary.

The attorney general's office argues that the law needs more interpretation, but further interpretation by a state agency such as the Corrections Department would be unconstitutional.

It's unknown when the Supreme Court will rule.

Meanwhile, Stevenson says Alabama has spent tens of thousands of dollars locking up a bicycle thief - and in other cases, repeat check forgers. "Everybody knows it needs to be addressed. But very few decision-makers are willing to take the leadership role to make this happen," Stevenson said.

John Tyson, district attorney in Mobile County where Jerald Sanders was prosecuted, said these kinds of cases are complex, and there are no easy answers for the best way to handle crime during the state's budget crisis.

However, Sanders "clearly is a repeat offender, and apparently was a nuisance in the community for a long time," Tyson said. For such severe punishment, "somebody was absolutely worn out with his criminal activities."

Sanders' appeal to his sentence is currently pending in U.S. District Court for the Southern District.